SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 36001/06
by Galip DOĞRU
against Turkey
The European Court of Human Rights (Second Section), sitting on 14 September 2010 as a Chamber composed of:
Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 17 August 2006,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Galip Doğru, is a Turkish national who was born in 1983 and lives in İstanbul. He is represented before the Court by Mr İ. Akmeşe, a lawyer practising in İstanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant's arrest and the criminal proceedings against him
On 15 February 2003 the applicant was caught red-handed while throwing a Molotov cocktail into a bank during an illegal demonstration in support of the PKK (the Workers' Party of Kurdistan). According to the arrest record signed by the applicant, while escaping from the police the applicant entered an empty building under construction, where he fell on the staircase and was subsequently caught by the police. According to the same document, the police used force to counteract the applicant's resistance.
The applicant was examined by a number of doctors on 15 February 2003. According to two medical reports issued following these examinations, the applicant sustained a cut and a haematoma on his right eyebrow, a bruise and oedema on his nose and a graze on his chin. In his statement to the doctor, the applicant maintained that the injuries had occurred during his arrest.
According to the medical report issued on 19 February 2003 at the end of the applicant's detention in police custody, the applicant had a sutured injury on his right eyebrow, a 2 x 2 cm bruise under his right eye and a 1.5 cm graze on his chin. In his medical examination, the applicant declared to the doctor that he was beaten during his arrest but that no such treatment had occurred in police custody.
On 19 February 2003 the applicant was taken before the public prosecutor, where he submitted that police officers had caused his injuries during his arrest. On the same day the applicant's lawyer complained before the investigating judge that the applicant had been ill‑treated and forced to sign self-incriminating statements in police custody. The applicant was detained pending trial by the investigating judge.
On 21 February 2003 the public prosecutor at the Istanbul State Security Court lodged a bill of indictment charging the applicant with membership of the PKK and with throwing explosives.
On 16 May 2003 the applicant complained before the trial court that he had been ill-treated during his arrest and his detention in police custody.
Following the abolition of State Security Courts, on 30 June 2004 the criminal proceedings against the applicant were transferred to the Fourteenth Division of the Istanbul Assize Court.
On 26 May 2006 the Istanbul Assize Court convicted the applicant of membership of an illegal organisation and of possession of and throwing explosives. In its decision, the court found that the applicant's injuries had occurred at the time of his arrest, as he had claimed in his initial statements to the authorities. The Court relied, inter alia, on the applicant's police statement, the arrest record, on-site inspection records, medical reports and the statements it took from the accused and witnesses.
On 12 December 2006 the Court of Cassation quashed the judgment on procedural grounds due to the absence of the trial judges' signatures on the verdict.
Following the remittal of the case to the first-instance court, on 25 July 2007 the applicant was released pending trial.
On 31 October 2007 the Istanbul Assize Court convicted the applicant once again of the same offences.
On 29 September 2009 the Court of Cassation upheld the applicant's conviction for membership of the PKK and possession of explosives.
2. The criminal proceedings against the police officers
On 24 March 2003 the Sultanbeyli public prosecutor brought criminal proceedings against three police officers before the Sultanbeyli Criminal Court for the alleged ill-treatment of the applicant. The applicant took part in the proceedings.
On 18 December 2003 the first-instance court acquitted the accused police officers during the hearing when the applicant was present. The court found that the applicant's injuries had happened as a result of his fall whilst running away from the police and due to his resistance to the arrest by the police officers. The judgment became final, in the absence of any appeal request.
COMPLAINTS
Relying on Article 3 of the Convention, the applicant alleged that he had been subjected to ill-treatment during his arrest and his detention in police custody. He further maintained under the same head that the national authorities had failed to conduct an adequate investigation into his allegation of ill-treatment.
Relying on Article 5 of the Convention, the applicant complained about the length of his pre-trial detention and the first-instance court's failure to act with due diligence in reviewing his continued detention.
The applicant contended under Article 6 § 1 of the Convention that he had not been tried by an independent and impartial court due to the special jurisdiction of the Istanbul State Security Courts and its successor Assize Court. He further argued that those tribunals could not be considered independent due to the Minister of Justice's presidency over the Supreme Council of Judges and Prosecutors, which was the appointing body of the judges.
The applicant next alleged under Article 6 § 1 of the Convention that the criminal proceedings against him had not been concluded within a reasonable time.
Relying on Article 6 §§ 1, 2 and 3 (c) of the Convention, the applicant argued that he had been denied fair proceedings because he had had no legal assistance in police custody and before the public prosecutor. He further complained under the same heads that the trial court had relied on his statements, allegedly obtained through ill-treatment in police custody, in securing his conviction.
Lastly, the applicant alleged under Article 14 in conjunction with Article 6 of the Convention that he had not been afforded the procedural guarantees available to an accused person in the criminal proceedings on account of his Kurdish origin.
THE LAW
1. The applicant complained under Article 3 of the Convention that he had been beaten by the police during his arrest and that he had been ill-treated while in police custody. He further complained under the same head that the authorities had failed to conduct an effective investigation into his allegations of ill-treatment.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
2. The applicant alleged that the length of his pre-trial detention and the criminal proceedings against him had exceeded the “reasonable time” requirement.
The Court considers that these complaints should be examined from the standpoint of Articles 5 § 3 and 6 § 1 of the Convention. It further considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
3. Relying on Article 6 §§ 1 and 3(c) of the Convention, the applicant complained that he had been denied legal assistance in police custody and before the public prosecutor, which had amounted to a breach of his right to a fair trial. He further submitted under Article 6 § 1 of the Convention that his statements taken under duress had been used by the trial court in convicting him.
The Court considers that it cannot, on the basis of the case file, determine the admissibility of these complaints and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.
4. The applicant complained under Article 6 § 1 of the Convention that he had not been tried by an impartial tribunal on account of the special jurisdiction of the Istanbul State Security Court and Assize Court, and the procedure of appointment of the judges to those courts.
The Court, at the outset, notes that the criminal proceedings against the applicant commenced before the Istanbul State Security Court, composed of three civilian judges, and since 30 June 2004, the proceedings were continued by the Istanbul Assize Court with all procedural safeguards provided to the applicant (see, mutadis mutandis, Yaşar v. Turkey (dec.), no. 46412/99, 31 March 2005, and Tarlan v. Turkey (dec.), no. 31096/02, 30 March 2006). In the absence of any substantiation as to why the Istanbul Assize Court's independence and impartiality may be deemed questionable, this complaint must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention as manifestly ill-founded.
5. Relying on Articles 6 and 14 of the Convention, the applicant alleged that due to his Kurdish origin he had been subjected to discrimination by the judicial authorities.
The Court observes that the complaint was submitted in a very general manner and the applicant did not provide any evidence suggesting that he was treated in a discriminatory fashion during the criminal proceedings against him. Therefore, the Court considers that the applicant's allegation under this head is unsubstantiated.
It follows that this complaint is manifestly ill-founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant's complaints concerning his alleged ill-treatment, the alleged failure of the authorities to conduct an effective investigation into his allegations of ill-treatment, his right to be released pending trial, to a trial within a reasonable time, the alleged denial of his right to legal assistance and the use of the applicant's statements allegedly taken under duress by the trial court;
Declares the remainder of the application inadmissible.
Stanley NaismithFrançoise Tulkens
RegistrarPresident
Full & Egal Universal Law Academy